November 05, 2007

Uncle Sam on the Lam

In an op-ed in the New York Times on November 5, (“Uncle Sam on the Line”), former Attorney General John Ashcroft offers a seemingly reasonable case for Congress to grant immunity to the major telecommunications carriers accused of cooperating in allegedly unlawful government surveillance programs. In short, Ashcroft argues that the carriers should not be held liable for their actions insofar as they acted on the basis of “explicit assurances from the highest levels of the government that the activities in question were authorized by the president and determined to be lawful.”

This sounds sensible. After all, the telecommunications companies were only doing what the government told them to do. What more could we or should we expect from them? It would be unfair and unwise – perhaps even un-American – to hold them accountable for cooperating with the government in a matter of national security – even if the programs were in fact unlawful.

I have some questions for Mr. Ashcroft. First, what are the limits, if any, of his position? Suppose the government asked a private security firm to commit murder or torture or rape. Would they, too, be entitled to immunity because they acted on the basis of “explicit assurances from the highest levels of the government that the activities in question were authorized by the president and determined to be lawful”? Is there a difference in principle between these situations? Perhaps in Mr. Ashcroft’s view unlawful surveillance is different because it’s just not a sufficiently serious violation of individual freedom to expect private individuals and organizations to question the legality of the government’s request. Perhaps Mr. Ashcroft would demand legislative immunity even in cases of murder, torture, and rape. I would like to know.

Second, what makes Mr. Ashcroft think that the government or the telecommunications companies could reasonably have believed in this situation that the government’s surveillance program was lawful? As a matter of fact, the clear consensus among legal and constitutional experts is that Mr. Bush’s surveillance program violated the 1978 Foreign Intelligence Surveillance Act, which expressly prohibited such conduct. Only a tiny slice of the legal profession believes that the Bush surveillance program was lawful, and almost all of them had been recruited into the Bush White House.

In plain truth, it is only the executive power fanatics like Vice President Cheney, David Addington (Cheney’s counsel), and John Yoo (the author of the notorious torture memo) who actually believe that the president has the constitutional authority to disregard federal law whenever he thinks it would be useful to do so. This is an extreme, unprecedented, and irresponsible legal position. It is not “reasonable,” and if the telecommunications companies consulted their lawyers, those lawyers should certainly have told them so. And if they are worth anything like what they are paid, they probably at least warned them that the program was, at best, of doubtful legality.

Moreover, even if the telecommunications companies were in doubt about the legality of the surveillance they were asked to carry out, what was the proper thing for them to do? Mr. Ashcroft seems to assume that patriotic Americans should give their government the benefit of the doubt and act compliantly. But it is not so simple. In a self-governing society that is premised on skepticism about the exercise of government authority, it is the responsibility of patriotic Americans not to blindly follow orders, but to question the legality of requests that seem on their face of doubtful legality. The real patriot does not dutifully murder, torture, rape, or spy merely because the government secretly whispers,“It’s O.K. with us.”

Third, Mr. Ashcroft complains that one of the reasons the plaintiffs are pursuing these lawsuits is to “force disclosure about the underlying programs.” But why does Mr. Ashcroft assume that this would be “a bad consequence, not a good one”? He asserts that the plaintiffs simply want to “advance their own political or ideological disputes with the administration,” at the risk of endangering our national security by “showing the world and our enemies sensitive secrets about how our national security agencies do their work.” This is unfair and wrong at many levels. It is indecent of Mr. Ashcroft to attribute selfish “political or ideological” motives to the plaintiffs. What they are doing is attempting to enforce the law and the Constitution of the United States. Whether they are right or not on the merits, that is commendable and a service to all Americans. Moreover, there is no risk that this litigation will endanger the national security, because a host of evidentiary privileges protect against the disclosure of information that would in fact have that effect. The real concern of the administration in this matter, as in so many others, is to shield its own possibly unlawful conduct from public view.

Finally, I wonder precisely who Mr. Ashcroft thinks should be held accountable if this program was in fact unlawful? By aggressively asserting executive privilege, the state secrets doctrine, official immunity, and using the power of presidential commutation, this administration has worked tirelessly over the past six years to evade accountability for torture, rendition, unlawful surveillance, secret detentions, and who knows what other misdeeds. So, tell me, Mr. Ashcroft, if the telecommunications companies are granted immunity, who will take responsibility for these programs, if they are in fact unlawful? The answer, I trust, is No One.

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That some telecom companies refused shows that there is no legitimate mistake of law defense here. They all knew what the laws were. They all have sophisticated in-house counsel that knows 1st and 4th amendment law. They all knew the status of FISA and the limits of 4th amendment jurisprudence and that what the executive branch alone was asking of them was outside the bounds of what they KNEW the law to be. No excuse. They oppose government interpretation of the law and formulate their own all the time in other admin contexts. Ridic.

Being an employee of the largest Telecom in Canada, I think I can offer a unique perspective. Stone makes a strong case for why the companies should be held accountable under law, and based upon your legal system which I am ignorant of, I would suggest that he may actually be correct in this case. The flip side of this, is that telecoms are restricted by the federal government through the FCC, and frequently require federal approval for ventures outside of their respective normal spheres of influence. To grow their businesses they require cooperation from the federal government, and refusing to co-operate would likely have future negative impacts on all of the businesses involved. Telecoms are significant employers of middle class and low to middle earners. As the government obviously capitalized on this common fact, were the telecoms not also manipulated ? How does prosecuting a victim further the common good ? I think the stream of thought that lead to prosecuting the telecoms is flawed at best, and counterproductive at worst.

It's not that the government dictates what is ok and what is not, common sense has to play into this one. If it is right to prosecute a victim then go right ahead. I happen to think its a little overboard to go after the companies in question. This is not to say that there is no reason to prosecute, I just find justice is not served by penalizing cooperation with the government, given the industry's reliance on the government to grow and prosper.

Justice is certainly served when you go after these companies. Deterrence anyone? Causing major corps to think twice the next time? This is why you punish them. The government doesn't exist outside those both in and out of it who effectuate its intent. You must hold those individuals who act as and for the government responisble for upholding the law, even when it's the gov itself breaking it.

According to Ashcroft's reason for granting immumity to telecoms-- "the carriers should not be held liable for their actions insofar as they acted on the basis of explicit assurances from the highest levels of the government that the activities in question were authorized by the president and determined to be lawful"-- this tells me that the immunity should not be granted. To grant telecoms immunity would be granting Bush immunity. The courts might have had something to say about the "explicit assurances". It would be helpful for Congress to be interviewing Qwest-- as to their reasons for not giving in to govt pressure to rat out their customers. Was Qwest harmed in any way for not giving the wanted information? Citizens should be allowed to file-- against someone-- for unlawful government surveillance. Each suit can be either accepted, or thrown out on its own merit. Bush and the telecoms can fight responsibility out between themselves in court. Each may be responsible for a percentage of wrongdoing, or damages. And, all can learn more about the legal limits of govt, or one official. The telecoms are dependent on the govt for their licenses. I think this fact makes Bush and/or the govt more culpable re the pressure they put on the telecoms for cooperation.

I would agree that the government has to be held to a higher account. They are in the position of authority and if the telecoms are responsible then the so too must be the government. I still find prosecuting of the Telecoms to be excessive. As much as this may force the telecoms to think twice before assisting the government again, I see this akin to going after the retarded brother of a bank robber who unwittingly helped his "big brother" ina heist. The companies dependance on government made them extremely vulnerable, especially the expanding and enterprising companies involved. While responsibility for action is a must, I find the effort to "go after" them as overkill as the scenario I spoke of. Justice is better served rehabilitating the guilty accomplice than throwing him in jail for being that which he has little choice over.

A civil suit has been brought against the companies. It is not at all the same as being prosecuted criminally. If they lose, they will pay damages, not face criminal sanctions.

In our system, it is extremely hard to directly challenge gov't actions such as this surveillance program for a variety of reasons, thus plaintiffs have had to sue their knowing and willing accomplices, the telecom cos.

How does "They might have lost market share if they hadn't co-operated" constitute a reason not to prosecute the telecos? The basic premise here seem to be that companies have to obey the law, but only if it's in their interests to do so.

agreed Pete, but its their dependance on the government to move forward that bothers me. We in Canada have weak protection from surveillance unlike you in the US. As I see it, the companies involved require cooperation and compliance from the federal government to move forward. Given this unique relationship I find that prosecuting the companies that complied as going after someone who had little choice. Their future depends on cooperating with the government, so challenging or refusing to go along with the request would have been a poor business move that may draw equal distain when they next need the government's help to advance. I'm not saying they deserve to get off with nothing but a slap on the wrist, and given Bob's elaboration on the nature of the suit being civil, I think they do deserve some penalty. That said I am weary of any excessive penalty again, due to the industries reliance on government assistance and cooperation. They were completely vulnerable to government suggestion in the simplest of terms possible, the bottom line. That has to be taken in account, even in America.

As a hypothetical example, say the next face of office communication outpaces the famous Canadian Blackberry, or Crackberry in coloquial terms. Say this item uses new technology and operates on a system that is patented like the Blackberry. In order to provide this vital service every telecom needs FCC authorization to expand into this market with the new technology it uses. Every telecom is very aware of this problem and wish to compete to provide exclusively to offer this service to business customers within their respective regions. If a company has been at loggerheads with the federal governemnt over unrelated issues, they expect a delay into hearing their side of the argument. Each telecom is awaiting the next invention that will take their business to the next level. Those that complied in the past with shady government actions would expect some reciprocation at this point. It is this promies of future money and expansion that forces the telecoms hands so that they comply. They can't afford not to if their entire future, their stocks, employees, and the people who rely on them to make ends meet, everything rides on the government being friendly with them. Frankly I'm surprised every telecom didn't go along with it. They must be looking forward to a future as a trust.

LAK's initial comment here should be dispositive. Each entity acts at its legal peril in almost every instance. A governmental request, with prima facie problems attending it, is certainly no different. Ignorance of the law by the party making the request or the one responding to it is no defense, especially for a segment of deep-pocketed corporate America, repleat with counsel up the gazoo. Private citizens should have their legal rights and recourses protected, not slid under a "whoops" of the federal government, as it tries to repair the problem at the expense of the companies' customers and in favor of the corporations which were likely campaign contributors. Ashcroft’s fix is a typical Republican solution.

Are we to assume that immunity from criminal prosecution with its higher burden of proof will have no spill-over effect on subsequent private civil actions. With the protected right a jury trial, I wouldn't.

regardless of Ashcroft's "republican" solution, it was the right thing to do. Some telecoms are diversified and have deep pockets, but not all of them. To draw a direct comparison to their competitors that focus on satellite and internet services, the differnece between being in the black or red is just a few customers off. Cable in general has very high overhead and maintenance costs, diversfying is a must because of the volatility of the industry. Not every company is public and diversified, many are 2nd generation mom and pop companies trying to break the mold of small cable/telecoms. Asserting that they are possible campaign contributors is foolish, because in all likliehood they would contribute to both parties, and a rich lobby speaking for some members of an industry does not constitute actual influence especially for the mom and pop companies trying to stay afloat. For whatever flaws that may be evident in Ashcroft's ruling, what I as an outsider see is a victory of common sense over vaccuous legal arguments. The common man, the small business owner and their employees have garnered a small victory.

The question, now that the milk is spilt, is whether customers are to made whole or the companies are to get off. LeGioNofZion wants the companies who erred protected and to hell with their customers. I want the customers who rights were infringed by those companies working with the government made whole and the companies held responsible for their error. That is the "right" thing to do. LeGioNofZion probably likes the current Court too, given his viewpoint here.

Well Kimball being a Canadian I must admit to both ignorance of the court and a certain naivete of your system. My position is not that the companies should get off with no responsibility in the matter, but that the amoount of said responsibility is reduced. I have a tendancy to look at issues not in a legal fashion but in a fairly objective standpoint weighing the benefits and drawbacks of these type of decisions. In this case, I see the infringement of rights being minimal at best by virtue of what has actually transpired. If there are clear cases of people being indicted on trumped up charges with little evidence other than a tapped conversation I would agree with your viewpoint. As this is not something I, in my addmited ignorance, have seen, I see the continued prosperity of the industry being paramount until evidence of sufficient wrong doing can be brought to light. A significant but not enormous fine in my opinion would be enough of a deterrant to ensure the industry does not go supporting bad ideas in the future. That the judge decided against this idea neither infuriates me, nor does it ellicit any serious negative feelings. Judges make rulings all the time, some I agree with some I disagree with and some as in this case I have small concerns with.

To draw a pop culture reference into this tired topic, during the Simpsons Treehouse of Horror episode recently, Lisa helped the alien Krang get locations to the US defensive grid by checking the latest issue of the New York Times. A small shot at the Times over the wiretapping issue along with a few other indiscretions. My point of view is that despite the NY Times breaking US law to reveal some of what they have uncovered, as minimal actual harm is evidenced of this, they should not be punished strongly. A fine is enough to deter future wrong doing. How is that for consistency ?

LeGioNofZion writes, in part, that, "In this case, I see the infringement of rights being minimal at best by virtue of what has actually transpired." This is the nub of our difference. Fourth Amendment rights against unlawful snooping and seizures have been hard won and they are too easily lost and compromised by that perspective and shenanigans like those of the Bush Administration.

When it was leaked what the Administration was doing, leading constitutional scholars all over the country protested, but initially few in power listened because the Republicans controlled and did not want to buck Bush. Now with a Congress of more Democrats and Bush’s legacy in the gutter, the issue is squarely on the table and those scholars have been proved right, just as the relevant legal history made clear earlier.

Compromising constitutional rights is a slippery slope and deterrent messages have to be sent to those who aid our government in violating them because constitutional rights have to be protected. We can not rationalize their violation after the fact to suit our convenience or explain them away with social or economic analysis. Bright line protection is necessary. By and large, they transcend circumstances.

This is a curiously American thing and the blood of many Americans has been shed to protect those rights. I can understand how a Canadian might not understand this perspective. It is distinctly American and part of what makes us different.

The one thing the Bush Administration has never understood is how the US government is supposed to work. At every turn, they just do not get it. Bush is all about raw political muscle and taking the law into his own hands to do what he wants, checks, balances and collateral considerations be damned

By the way, I too do not believe the industry should be fined into its death throes, but one big enough to make them think twice about cooperating in such schemes in the future is appropriate, I think.

I get your point of view, and it makes sense. Fine as deterrant is ok by me, but I thought from some of the earlier posts that some people wanted blood. And being inside the industry across the border I have a unique insight as to how it operates both within and without your country's borders. What passes for the Canadian constitution is laughable at best, and the heart of the cause for our Quebec separatist movement. Our Charter does not protect us as succinctly as your constitution does you. It does make for a different approach and values set when approaching an issue.

If the infringement had lead to serious examples of injustice then "going for blood" would be something I would not oppose. As it has not, the fine as a deterrant is acceptable. Balance is a personal obsession, and I think that is a balanced viewpoint.